THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1272/2022
In the matter between:
CITY OF CAPE TOWN APPELLANT
and
NQULELWA MTYIDO RESPONDENT
Neutral citation: City of Cape Town v Mtyido (Case no 1272/2022) [2023] ZASCA
163 (1 December 2023)
Coram: GORVEN, WEINER and GOOSEN JJA and KOEN and KATHREE-
SETILOANE AJJA
Heard: 20 November 2023
Delivered: 1 December 2023
Summary: Delict – widening of pleadings – wrongfulness and negligence –
respondent injured as a result of open manhole under control of appellant – open
manhole previously reported to an employee of the appellant.
2
ORDER
On appeal from: Western Cape Division of the High Court , (Erasmus J, Salie-Hlophe
and Papier JJ concurring, sitting as a full court of appeal).
The appeal is dismissed with costs, such costs to include the costs of two counsel where
so employed.
JUDGMENT
Koen AJA (Gorven, Weiner and Goosen JJA and Kathree-Setiloane AJA
concurring)
Introduction
[1] The respondent, Ms Nqulelwa Mtyido , alleges that on 17 October 2013 while
walking along Khwezi Street, in Bardale, Mfuleni, a public road within the municipal area
of the appellant, the City of Cape Town, she fell into an open manhole which resulted in
her sustaining injuries to her right ankle . She sued the appellant in the Western Cape
Division of the High Court1 (the trial court) for damages arising from her injuries. The trial
court separated the issue of liability from damages . It found that e mployees of the
appellant wrongfully and negligently failed to take steps to prevent the respondent from
being injured by the open manhole . It declared the appellant liable for the damages, if
any, that the respondent had suffered in consequence of the incident, and also directed
that it must pay her costs.
1 Dolamo J.
3
[2] The appellant appealed2 against the whole of the judgment of the trial court to the
full court of the Western Cape Division of the High Court (the full court). The full court 3
dismissed the appeal with costs. This appeal is against the decision of the full court.4 The
appeal turns on an evaluation of the pleadings, the evidence and the probabilities in the
light of the pleadings.
Requirements for liability
[3] The respondent’s action is founded on the actio legis Aquilia. The issue of liability
required the respondent to establish conduct which was wrongful and negligent, on the
part of employees of the appellant, which caused her to be injured. The respondent bore
the onus of proving these requirements.
The evidence
[4] The respondent testified that around 20h00 on 17 October 2013 she was walking
along Khwezi Street, Mfuleni, a road perpendicular to Ukubetana Street where she had
resided from December 2009, to fetch water from a tap at a nearby informal settlement,
as she was without water at her home. She had never been to that area before and was
unaware of any manhole in Khwezi Street . It was becoming dark, but there was a
floodlight on a high mast in an adjoining settlement, which provided some light. She
walked on the tar road as the pavement was covered with sand and plant growth and she
feared she might step on some glass. Suddenly she felt that she was falling and realized
her right leg had stepped into a ‘drain’, which turned out to be an open manhole without
a cover. She called for help, and two ladies who she had come across earlier, came to
her assistance. The y alerted her husband, who brought his vehicle and took her to the
Delft hospital.
2 Leave to appeal was dismissed by the trial court with costs. On petition leave to appeal was granted to
the full court of the Western Cape Division of the High Court.
3 Per Erasmus J, with Salie-Hlophe and Papier JJ concurring.
4 Special leave to appeal was granted by this court on 10 November 2022. The costs of the application for
leave to appeal to the SCA were directed to be costs in the appeal.
4
[5] The respondent pointed out the location of the manhole in Khwezi Street to
representatives of the appellant during an inspection during November 2019 . She also
identified the location of the manhole on a series of photographs introduced by the
appellant (the appellant’s photographs). These photographs show a manhole with a cover
in place fitted, in the tarred road, flush with the tarred surface. She testified that ‘at that
stage of the incident . . . this hole was not in th is fashion it shows here today’ and ‘that
there is a difference today . . .’ She was also referred to three photographs (the
respondent’s photographs) in respect of which her attorneys had provided written notice
in terms of rule 36(10)5 as ‘depicting the scene of the incident .’ No objection was raised
to this notice thus entitling the respondent to produce the photographs without formal
proof thereof . Although she did not know who had captured the respondent’s
photographs, she was clear that ‘these photos depict the area and how it was during that
period of this incident’.(Emphasis added)
[6] The respondent’s photographs show ‘an object ’ a short distance from the
intersection of Ukubetana and Khwezi Streets, which she said ‘is the same like this one’,
referring to a close up photograph of the open manhole she said resulted in her injury .
She concluded by stating , ‘So hence I say it’s the same manhole .’ The close-up
photograph of the ‘object’ shows a manhole partially covered by what appears to be two
concrete kerbing stones, similar to those forming the border of the pavement in that area,
but still leaving about half of the open manhole exposed. During the trial the appellant
conceded that the area shown on the respondent’s photographs is the area concerned.
[7] The respondent testified that there were no people staying on the opposite side of
Khwezi Street , where the storm water pipes are positioned on the respondent’s
photographs, during October 2013; that ‘nothing else happens further down’ from the spot
where she was injured ; that workers were busy preparing that area ; that people started
staying there only from 2018; and that the tarred road (in Khwezi street) ended at a point
somewhere between the manhole and the tap where she was going to fetch the water. A
5 The notice in terms of rule 36(10) was served on 4 February 2019, that is more than one year prior to the
trial commencing.
5
comparison of the appellant’s and respondent’s photographs also suggest that Khwezi
Street was subsequently extended and tarred beyond the point indicated by the
respondent. A witness called by the ap pellant, Mr Welman disputed this, and said the
road was already complete in 2013, but simply obscured by sand covering it . However,
this was not put to the respondent in cross examination.
[8] The respondent also called the evidence of Mr Barnabas Zwehile Xwa yi (Mr
Xwayi). He previously lived across the road from the respondent in Ukubetana Street, but
has since retired to the Eastern Cape. His return for the trial was the first time he returned
to the area since 2018. He had become aware that the respondent had suffered an injury
when he saw her after she was discharged from hospital . He had previously found an
open manhole in Khwezi Street which he reported to a n employee of the appellant. As
this evidence is significant, it is set out verbatim:
‘The year wa s 2013, but unfortunately I cannot assist the court by giving the specific month
because this was quite a while back. I saw these workers who were busy performing the duties
on the road so I approached them and asked them how can I be assisted by having th is hole
closed. So one these gentlemen who were busy working pointed to somebody and said to me:
there is the boss, go and put your complaint to him about this hole. And then I approached this
one gentleman, I took him to the hole and showed him the hole. He promised me that the hole
will be closed.
Now as time went by, like approximately two months now I got word that somebody had fallen
into that whole.’
When questioned about the person he spoke to, he said:
‘When I looked at this gentleman I noticed they had the emblem of City of Cape Town on their
chests, whatever they had on, on their tops, on their hard hats as well as on the bakkie.’
He also said that he took three poles with some ‘pellets’,6 placed the poles into the hole
and the pellets around them or over the poles, and used a red-and-white tape in order to
warn people about the open hole . However , the people living in the nearby shacks
removed these, probably to make fire or use them in some other way. According to the
respondent on her return to t he area after her hospitalisation, she inspected the area
where she had been injured and saw the open manhole with some wood inside it. This
6 Presumably Mr Xwayi meant ‘pallets.’
6
observation confirms that Mr Xwayi’s report related to the same manhole as the one which
caused the injury to the respondent.
[9] Mr Xwayi could not name th e person he reported to . He also did not make any
further reports. He initially had some difficulty when testifying , to point to the location of
the manhole on an aerial photograph of the area, but a fter some prompting and having
orientated himself somewhat, pointed to the s ame location identified by the respondent
in her evidence.
[10] The appellant adduced the evidence of three of its employees: Mr Ian Quintus
Welman, a project manager in the Human Settlements Department of the appellant; Mr
Pierre Maritz, the Manager of Reticulation, of the Engineering Department of the appellant
responsible for the maintenance of manholes; and Mr Shafodien Hussein Jaffer, an
administrative assistant employed by the appellant.
[11] Mr Welman’s evidence related to lighting in the area from the high mast in the
adjoining settlement known as Garden City. This evidence was relevant mainly to the
issue of contributory negligence on the part of the respondent, an issue not persisted with
in this appeal. As a project manager in the Human Settlements Department of the
appellant he was involved with the housing development in that area: he testified that the
location where the respondent and Mr Xwayi lived in Ukubetana Street was in phase 3B
of the development ; Khwezi Street marked the boundary of phase 3B; phase 3B was
completed in 2009 with, to the best of his recollection , municipal services having been
installed shortly before completion ; and the area on the other side of Khwezi Street
opposite to phase 3B was phase 5A, which had not been fully developed at that stage .
This evidence is consistent with what appears from the respondent’s photographs
showing some storm water pipes lying on th e far side of Khwezi Street, and an aerial
photograph of the area dated 19 October 2013 (two days after the respondent’s accident)
included with the appellant’s photographs, showing the area of phase 5A as vacant.
7
[12] Mr Welman could not provide exact details of the services installed as he had not
brought the relevant documents with him. Furthermore, much of the development
handover was attended to by consultants on behalf of the appellant . Mr Welman
confirmed that car traffic in that area, especially Khwezi Street ‘would be minimal’ and not
‘congested at any point in time during a day.’ In contrast, Mr Maritz testified it was a ‘high
travelled road’, but his observation might have related to the traffic position at the time of
the trial and not October 2013.
[13] Mr Martiz testified that there were roughly 192 000 manholes under the appellant’s
control during 2013 . The appellant’s C3 system is used to record reports of missing
manhole covers, whether reported by the public or when discovered by its employees.
This system reflected that nine missing covers were recorded for the Mfuleni area during
the period from 1 August 2013 to 31 October 2013. A manhole cover cannot be replaced
without it being recorded on the system with a reference number. Where a complaint of
a missing manhole cover is received , the appellant endeavours to replace the missing
cover within three hours. There was no record of a manhole cover missing in Khwezi
Street during 2013, or thereafter on the system.
[14] Mr Maritz inspected the manhole in que stion in Khwezi Street on 11 February
2020. The appellant’s photographs show the condition of the manhole around that time.
He identified the cover on the appellant’s photographs as the heavier 2A type installed on
roads as they are able to carry the load of vehicles. It has an additional hinge feature
which would make it difficult to remove the lid, as it requires specialised knowledge of the
workings of the hinge mechanism. If this type of manhole cover is required to be replaced,
then the frame of the manhole in which the cover s its would also need to be replaced .
That would result in the tarred surface around the manhole being disturbed as the new
frame has to be set in concrete. The concrete would be clearly visible if the frame of the
manhole had been replaced. He opined that as this manhole as it existed at the time of
his inspection, had a fitted cover in situ, and the tar around the manhole appearing on the
appellant’s photographs had seemingly never been disturbed, that it could not have been
left open without a cover since it was first installed. He did however state in re -
8
examination, in response to the question whether one can replace ‘that manhole without
– with simply replacing a cover in a manner that you cannot see’, that ‘it is highly unlikely
that you will get the perfect fit . . .’ (Emphasis added).
[15] He testified , with reference to an aerial photograph of Khwezi Street dated 22
February 2014, that an open manhole at the point indicated by the respondent and Mr
Xwayi, would cause severe problems within hours due to the volume of sand in the area
which would fill up the manhole and block the sewerage flow. In his view it was therefore
unlikely that the manhole in Khwezi Street was uncovered for months.7
[16] Mr Jaffer testified that he had examined the C3 system records and could not find
a record of a missing manhole cover in Khwezi Street being reported, or a missing cover
being replaced, during the whole of 2013, or during the period from 2014 until 2020. There
was only one report of a missing manhole cover in Ukubetana Street during September
2014.
The findings of the trial court and full court
[17] The trial court accepted the evidence of the respondent and that of Mr Xwayi as
credible and probable. Mr Xwayi was viewed as independent and not showing any bias.
[18] With regards to the appellant’s witnesses , the trial court found that Mr Maritz’s
opinion that the manhole cover had never been missing, as the manhole found there at
the time of the trial was the original one b ecause the tar around the manhole was
homogenous with the rest of the surroundings , was inadmissible. This was because Mr
Maritz had not been qualified as an expert, and the provisions of Uniform rule 36(9) had
not been complied with. In the alternative it found that Mr Maritz’s evidence would in any
event be irrelevant, because he was simply giving evidence on an issue the Court had to
decide.
7 There was however no evidence whether the sewerage flow had been blocked or not, or whether the
sewerage service was indeed in place and used yet.
9
[19] It further concluded that Mr Maritz’s reliance on the records drawn from the C3
system to substantiate the point that no cover was reported missing or was replaced in
Khwezi Street during 1 January 2013 to 31 December 2013, was dependent on human
intervention. This implied that it is fallible, and that whatever was sought to be inferred
from the records on the C3 system did not negate the direct credible evidence of Mr Xwayi
that he had reported the m issing manhole cover to an employee of the appellant . It
concluded that the only reasonable explanation why there was no record of the missing
manhole cover on the C3 system was either because the appellant’s employee to whom
Mr Xwayi made the report never forwarded the complaint to the relevant department, or
that it was possibly incorrectly recorded on the C3 system.
[20] As to when the cover examined by Mr Maritz on 22 February 2020 was installed,
the trial court concluded that it was any time after 31 December 2013 . The records of
missing and replaced covers in Khwezi or Ukubhethana Streets after 31 December 2013
were not made available, and Mr Jaffer was not clear and certain in his evidence, as he
said that he thought that he had looked at the records ‘from 2013 up until the current.’
The trial court observed that the appellant’s witnesses testified without having the facts
‘to back up their bald assertions’, and that this could have been avoided if, with all the
resources available to it, the relevant records were available for reference to be made
thereto. Finally, it concluded that the version of the respondent was not ‘equipoised’ with
that of the appellant but was more probable than that of the appellant.
[21] The full court concluded that the trial court had not misdirected itself in any manner,
including its findings on the facts, credibility and the reliability of the witnesses, which
would justify it interfering with its findings. It concluded that the respondent’s version was
materially corroborated, reliable and not characterized by contradictions and
improbabilities. Whatever contradictions there were, were raised and considered by the
trial court in a fully reasoned judgment and dismissed. It concluded that even if the ‘expert
opinion evidence’ of Mr Maritz was not excluded,8 that this evidence would nevertheless
8 This issue can be disposed of briefly as follows: Rule 36(9) was not complied with. However, the evidence
that a manhole, if replaced, would show the concrete surround was factual. What inference was to be drawn
10
‘not trump’ the evidence of the respondent and Mr Xwayi. Accordingly, there was no basis
to interfere with the trial court’s findings and its acceptance of the respondent’s version.
[22] The appellant contends that the full court erred by not finding that the trial court:
failed to have regard to the evidence in its totality; failed to ensure that the conclusions
reached accounted for all the evidence; failed to distinguish probabilities and inferences
from conjecture and speculation; failed to properl y consider the probabilities; failed to
draw inferences only from objectively proven fact s; and failed to follow the approach to
factual disputes as stated in Stellenbosch Farmers Winery Group Ltd and Another v
Martell Et Cie and Others9 (Martell) in regard to irreconcilable versions.
Analysis
[23] A court of appeal will generally not interfere with findings of credibility made by a
trial court, because the trial court would have had the benefit of observing the witnesses
when testifying, unless those finding are clearly wrong. Similarly, an appeal court will not
from the manhole at the time of the trial not having such concrete surround was for the trial court to decide
- not isolated to that fact, but in the light of all the circumstances of the case. The conclusion of both courts
that it is irrelevant what inference Mr Martiz drew from the facts because that is what the trial cour t had to
decide, is correct.
9 Stellenbosch Farmers Winery Group Ltd and Another v Martell Et Cie and Others 2 003 (1) SA 11 (SCA)
para 5 held:
‘On the central issue, . . .there are two irreconcilable versions. So, too, on a number of peripheral areas of
dispute which may have a bearing on the probabilities. The technique generally emp loyed by the courts in
resolving factual disputes of this nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual
witnesses; (b) their reliabi lity; and (c) the probabilities. As to (a), the court’s findings on the credibility of a
particular witness will depend on its impression about the veracity of the witness. That in turn will depend
on a variety of subsidiary factors, not necessarily in ord er of importance, such as (i) the witness’ candour
and demeanour in the witness – box, (ii) his bias, latent and blatant, (iii) the internal contradictions in his
evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with es tablished fact
or with his own extra -curial statements or actions, (v) the probability or improbability of particular aspects
of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying
about the same inci dent or events. As to (b), a witness’ reliability will depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the
event in question and (ii) the quality, integrity and independ ence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or improbability of each party’s version on each
of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a fin al step,
determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard
case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one
direction and its evaluation of the general probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised probabilities prevail.’
11
lightly interfere with the factual findings made by a trial court. As was said in Mashongwa
v Passenger Rail Agency of South Africa (Mashongwa):10
‘It is undesirable for this court to second-guess the well-reasoned factual findings of the trial court.
Only under certain circumstances may an appellate court interfere with the factual findings of a
trial court. What constitutes those circumstances are a demonstrable and material misdirection
and a finding that is clearly wrong. Otherwise trial courts are best placed to make such findings.’11
[24] The full court correctly concluded that there was no basis to interfere with the trial
court’s findings on credibility. During argument before us the appellant’s counsel
conceded that the credibility of the respondent and Mr Xwayi could not be impugned. 12
The concession was correctly made. The respondent and Mr Xwayi were both single
witnesses in regard to the issues on which they testified, 13 but they gave their evidence
in a clear and satisfactory manner, without hesitation, and without exaggeration. They did
not contradict themselves and there were no contradictions between their evidence and
the established facts. Their evidence was reliable.
10 Mashongwa v Passenger Rail Agency of South Africa [2015] ZACC 36; 2016 (3) SA 528 (CC).
11 Ibid para 45. See also S v Hadebe and Others 1997 (2) SACR 641 (SCA) 645E-F; Santam Bpk v Biddulph
2004 (5) SA 589 (SCA) para 5; Minister of Safety and Security & Others v Craig and Others NNO [2009]
ZACC 97; 2011 (1) SACR 469 (SCA) para 58.
12 This was part of a more general concession that no adverse credibility finding should be made against
any of the witnesses.
13 The respondent was criticised, because her evidence that she stepped into the manhole in Khwezi Street
was disputed, for not calling the evidence of the two ladies who had come to her assistance, or her husband
who came to collect her there, as she bore the onus of proving the incident, and there was no suggestion
on the record that they were not available to testify. But, as has been held in Rand Cold Storage and Supply
Co Ltd v Alligianes [1968] 2 All SA 241 (T) at 243:
‘It is axiomatic that a party need not, and cannot be blamed if he does not, call all the witnesses who may
give pertinent evidence; he is entitled to take the risk of offering less than all the evidence available to him
if he is of the opinion that what he has offered would suffice to one. He may of course in the result be shown
as having been too confident but that is something different from being found to have de liberately
suppressed evidence unfavourable to him – which is the conclusion sought to be drawn here. In Brand v
Minister of Justice and Another, 1959 (4) SA 712 (AD), it is said at p 715:
“this statement does not, however, mean any more than that, if, in the absence of the testimony of the
witness in question, the evidence is otherwise equally balance, the onus will come into effect of operation.
The statement in question does not mean that any greater obligation to call the witness rests upon the onus
– bearing party: it merely means that, if he does not call the witness, he runs the risk of the onus of proving
decisive against him. “’
In this matter, the evidence was not evenly balanced, but it favoured the respondent.
12
[25] The appellant however argued, accepting that the respondent and Mr Xwayi were
credible and reliable witnesses, that their evidence was nevertheless improbable, and
that they might be mistaken. It argued that the more probable inference to be drawn from
the evidence that the t ar around the manhole as it existed at the time of the trial did not
show any disruption or a concrete inlay, and that the C3 system did not contain any record
of a manhole cover being reported missing and/or being replaced in Khwezi Street during
October 2013, or thereafter, is that the manhole in Khwezi Street had not been open and
without a cover in October 2013.
[26] That conclusion firstly, would contradict the direct evidence of both the respondent
and Mr Xwayi and reflect negatively on their credibility, which is not only beyond reproach,
but has been accepted to be such by the appellant . Second, it is depend ent on that
inference being the most probable inference to be drawn from what is circumstantial
evidence relating to the frame of the manhole not be ing set in concrete, and the C3
system not containing any reference to a missing manhole cover in Khwezi Street in 2013
or beyond.
[27] The inference sought to be drawn by the appellant is not the most probable
inference that could be drawn. There are also other equally probable inferences that could
be drawn. The probability of the inference which the appellant wishes to draw, was also
not established, as the trial court had found . Other inferences could include that the
manhole as it existed at the time of the trial, was fitted after December 2013, as the trial
court concluded, when the roads for phase 5A were completed or tarred/retarred, some
of which seemingly occurred in the five months subsequent to the respondent having
sustained her injuries. The detail of whether the manhole, which was in situ at the time of
the trial, is the original manhole, or how it came to exist in the condition shown on the
appellant’s photographs, is not within the knowledge of the respondent, but peculiarly
within the knowledge of the appellant. As the trial court remarked, the appellant would
have the records. This should include when the road infrastructure was finally put in place
as part of the civil construction work. The appellant had an evidentiary onus to place this
evidence before the trial court if it wished it to infer, as the most probable inference, that
13
the frame of the manhole cover in Khwezi Street had never been replaced, and if it wished
to negate the respondent’s direct credible evidence that s he had suffered her injuries at
that manhole.14
[28] Much of the evidence was not seriously disputed. 15 What ultimately remained in
dispute for resolution, was which one of two mutually conflicting versions should prevail:
the version of the respondent that her injuries were caused when she stepped into the
open manhole in Khwezi Street, after the open manhole had previously been reported to
the appellant; or the version of the appellant that it had no knowledge of an open manhole
in Khwezi Street, and, that as a matter of probability, the manhole pointed out by the
respondent in Khwezi Street did not have a missing cover during October 2013.
[29] The test to be applied in deciding between mutually destructive versions was
stated, amongst others in National Employers’ General v Jagers16 (Jagers) as follows:
‘. . . in any civil case . . . the onus can ordinarily only be discharged by adducing credible evidence
to support the case of the party on whom the onus rests. . . . [W]her e there are two mutually
destructive stories, he can only succeed if he satisfies the Court on a preponderance of
probabilities that his version is true and accurate and therefore acceptable, and that the other
version advanced by the defendant is therefor e false or mistaken and falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s
allegations against the general probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with the consideration of the probabilities of the case and, if
the balance of probabilities favours the plaintiff, then the Court will accept his version as being
14 The evidence of Mr Jaffer suggested that a situation could arise where workers ‘reserved the stock from
their store but it is not specific that it is – what will happen if say for instance they draw 10 drain covers or
sorry 10 manhole covers it is not always specific to a specific job they would then ja replace those covers.’
As much as Mr Welman said it was the original manhole, he had no records with him and did not express
any basis for coming to that conclusion.
15 This included: that the respondent suffered an injury to her ankle when she stepped into an open
manhole; that the manhole pointed out by the respondent, as corroborated by Mr Xwayi, is the one situated
in Khwezi Street; that the respondent’s photographs of the manhole shows it as having been left open and
still being open when photographed; that the manhole cover in the same area, depicted on the appellant’s
photographs, shows a manhole with a cover as it existed more than six years after the incident, on an
undisturbed tar surface in Khwezi Street; and that some further infrastructural work was carried out after
October 2013 in the general area in respect of Khwezi Street in respect of phase 5A of the development.
16 National Employers’ General v Jagers National Employers’ General v Jagers National Employers’
General v Jagers 1984 (4) SA 437 (E) at 440D – 441A.
14
probably true. If however the probabilities are evenly balanced in the sense that they do not favour
the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the
Court nevertheless believes and is satisfied that his evidence is true and that the defendant’s
version is false. . . I would me rely stress however that when in such circumstances one talks
about the plaintiff having discharge the onus which rested upon him on a balance of probabilities
one really means that the Court is satisfied on the balance of probabilities that he was telling the
truth and that his version was therefore acceptable. It does not seem to me to be desirable for a
Court first to consider the question of the credibility of the witnesses as the trial Judge did in the
present case, and then, having concluded that enquiry, to consider the probabilities of the case,
as though the two aspects constitute separate fields of enquiry. In fact, as I have pointed out, it is
only where a consideration of the probabilities fails to indicate where the truth probably lies, that
recourse is had to an estimate of relative credibility apart from the probabilities.’
[30] In reaching a conclusion on the contradictory versions, the trial court, following
Martell and Jagers, made findings on the credibility of the various factual witnesses, their
reliability, an d the probabilities. Its approach cannot be faulted. It found that the
probabilities based on credible evidence, favoured the respondent’s version. Even if the
probabilities could be said to be evenly balanced, then based on the credib ility of the
respondent and Mr Xwayi, the respondent still discharged the onus17 of proving that her
injuries resulted from her having stepped into the open manhole in Khwezi Street, which
previously had been reported to the appellant.
[31] There is no basis to find that the full court erred in accepting the trial court’s findings
of fact, and in endorsing its conclusion.
Wrongfulness
[32] Accepting the factual findings made by the trial and full court, the appellant then
confined its argument to the legal issue whether the respondent had established
wrongfulness.
17 National Employer General v Jagers (supra).
15
[33] The appellant argued that the finding of the full court that the appellant owed ‘a
legal duty to protect the public from suffering any physical harm by the infrastructure
through which it provides services’, and its reliance on Democratic Alliance and Another
v Masondo and Another18 as authority for that propos ition, were incorrect. It pointed out
that Mashongwa19 held that wrongfulness does not flow from a breach of a public duty
alone, but that a breach of a public duty is simply one of the factors that a court must
consider in order to ascertain wrongfulness. The appellant also drew attention to the
caution expressed in Municipality of Cape Town v Bakkerud20 that:
‘It is tempting to construct such a legal duty on the strength of a sense of security endangered by
the mere provision of a street or pavement by a municipality but I do not think one can generalise
in that regard. It is axiomatic that man -made streets and pavements will not always be in the
pristine condition in which they were when first constructed and that it would be well – nigh
impossible for even the largest and most well-funded municipalities to keep them all in that state
at all times. A reasonable sense of proportion is called for. The public must be taken to realise
that and to have a care for its’ own safety when using the roads and pavements.’
The appellant also argued that the respondent had not ‘lead any evidence relevant to the
discreet element of wrongfulness’ as pleaded, and that it would be unreasonable 21 to
impose liability for the responden t’s injuries on the appellant , given the facts and
circumstances of the case.
[34] It would be wrong however to confine the respondent’s case as regards
wrongfulness to what was pleaded. The allegations in the respondent’s particulars of
claim22 regarding wrongfulness, and also negligence, can rightly be criticised as being of
18 Democratic Alliance and Another v Masondo and Another 2003 (2) SA 413 (CC) para 17
19 Mashongwa para 28.
20 Municipality of Cape Town v Bakkerud [2000] ZASCA 174; [2000] 3 All SA 171 (A) paras 28 and 29.
21 This was with reference inter alia to Minister of Safety and Security v Van Duivenboden 2002 (6) SA 341
(SCA) para 12.
22 As regards wrongfulness it was alleged that the appellant owed a legal duty to members of the public
and to her in particular: to ensure that areas within its jurisdiction and/or under its control and to which
members of the public had unrestricted access were free of any dangers and/or potential dangers; to ensure
that adequate measures were taken in all areas within its jurisdiction and/or under its control to which
members of the public had unrestricted access to safe guard members of the public against any dangers
and/or potential dangers; and to take reasonable precautions to warn members of the public of any dangers
and/or potential dangers in all areas within its jurisdiction and/or under its control to which the members of
the public had unrestricte d access. As regards negligence, the respondent alleged that the appellant
breached the duty of care alleged.
16
a general nature, terse, not fact specific and unhelpful. The respondent’s case, both as
regards wrongfulness and negligence, became more specific during the evidence, when
it emerged that she would contend that the open manhole had been reported, some two
months prior to her being injured, to an unidentified employee of the appellant who
promised to have it covered, but that nothing was done to do so, resulting in her suffering
injury.23
[35] This evidence by Mr Xwayi was introduced without any objection from the
appellant. The evidence was fully canvassed during cross examination. The issues for
adjudication accordingly came to be widened 24 beyond what was contained in the
particulars of claim, to include inter alia: whether the appellant had prior knowledge of the
potentially dangerous situation posed by an open manhole in Khwezi Street; whether that
knowledge gave rise to a duty of care owed to the respondent to prevent her from being
injured; and whether the appellant negligently breached that duty by failing to close the
manhole.
[36] It is trite law that a legal duty may arise where a defendant has prior knowledge of
a potentially dangerous situation .25 In casu, it is not suggested that a legal duty arose
simply because the open manhole was under the control of the appellant . The
respondent’s case was that a legal duty of care arose specifically because the appellant
had knowledge of the existence of the open manhole which was reported to its employee,
and did nothing to cover the manhole.
23 It was wrongly argued by the respondent before the trial court that these further grounds of wrongfulness
and negligence, were not required to be pleaded because they constitute evidence and ‘one does not plead
evidence.’ It should have been pleaded. It is the how and when and to whom the open manhole was
reported to result in the appellant having knowledge thereof and allegedly giving rise to a duty of care, that
would constitute evidence that need not be pleaded. But that it will be contended that such a duty existed
and that the breach thereof would be relied upon as constituting wrongfulness, should be pleaded.
24 Shill v Milner 1937 AD 105.
25 Van Vuuren v Ethekwini Municipality 2018 (1) SA 189 (SCA) para 21 and 24.
17
[37] Ultimately, whether a duty of care arises, a breach of which would constitute
wrongfulness, depends on the legal convictions of the community. As it was put in Le
Roux v Dey:26
‘. . . what is meant by reasonable ness . . . concerns the reasonableness of imposing liability on
the defendant for the harm resulting from that conduct.’
[38] The appellant relied on Du Plessis v Nelson Mandela Metropolitan Municipality 27
where numerous complaints of a hole which posed a dange r ha d been made to the
municipality, and ignored. It argued by contrast, that in this appeal, the single report by
Mr Xwayi of the open manhole to an unknown employee of unknown authority, on an
unknown occasion, was insufficient for prior knowledge of the dangerous situation posed
by the exposed manhole to be ascribed to the appellant, to give rise to a duty of care.
[39] Every case will depend on its own facts. The date when the report was made might
not be a specific date, but it is not indeterminate. Mr Xwayi said it was just more than two
months before the respondent returned home from hospital after she had been treated
for her injuries. The person to whom he reported might not be identified by name, but he
was clearly an employee of the appellant, of some seniority, as he wore a shirt and hat
and drove a bakkie with the appellant’s emblem displayed thereon , and was
acknowledged by the team of workers as ‘the boss’ and the one to whom Mr Xwayi should
make such a report. Mr Xwayi sp oke to this person . This person did not refer him to
anyone else, nor did he decline to assist . Instead, he assumed responsibility for the
situation and undertook to close the hole. As much as one has an appreciation for the
difficult task the appellant has, to manage processes to replace missing manhole covers,
the process can only be improved by allowing members of the public to report missing
covers to a responsible employee of the appellant, for remedial steps to be initiated.
26 Le Roux v Dey (Dey) [2011] ZACC 4; 2011 (3) SA 274 (CC) para 122.
27 Du Plessis v Nelson Mandela Metropolitan Municipality [2009] ZAECGHC 54 paras 11 and 12.
18
[40] The present is not a case, as the appellant suggested, of unreasonably extending
delictual liability simply because the respondent might be deserving of some sympathy.28
Ultimately, wrongfulness depends on considerations of public and legal policy in
accordance with constitutional norms and the reasonableness of imposing liability on the
appellant.29 The legal convictions of the community require that where the appellant had
knowledge of an open manhole, the failure to c over the hole within a reasonable time ,
resulting in possible injury to a member of the public, would be wrongful.
[41] Whether the appellant had knowledge of the open manhole, or not, is a question
of fact. Obviously, the possibility for false claims always exists, but the legal convictions
of the community do not dictate that because some claims might be fraudulent, therefore
genuine claims should for that reason alone be disallowed. In the present instance, where
the credibility of the respondent is not impugned, difficulties in deciding whether the claim
might be false and contrived do not arise.
[42] The appellant was critical during argument of Mr Xwayi not follow ing up on his
initial report, that he had not complained more than the one time that he did, and that he
had not advised his neighbours, including the respondent , of the danger posed by the
open manhole. But why should he ? Mr Xwayi did not present as a sophisticated person
well versed in matters of municipal administration. He completed a standard 4. In the spirit
of discharging a self -imposed public duty, he took the trouble of reporting a dangerous
situation to an employee, designated by the workers working in the area as the ‘boss’.
This person did nothing to dispel the belief harboured by Mr Xwayi that he was a person
to whom he could r eport. As a matter of legal policy, the legal convictions of the
community would view what Mr Xwayi did as sufficient to bring the existence of this
danger to the attention of the appellant. If an employee in authority choose s not to give
adequate attentio n to such reports , or fail s to escalate such report to the appropriate
persons through the correct channels, then the issue is one of better education and
28 South African Hang and Paraglyding Association and Another v Bewick [2015] ZASCA 34; 2015 (3) SA
544 (SCA) para 3.
29 Dey para 122.
19
ongoing training of the appellant’s employees being required. That is , if such education
is in fact required, because on the facts of this matter, what happened cannot be ascribed
to a lack of knowledge of procedures. The workers referred Mr Xwayi to their ‘boss’ and
the ‘boss’ did not try to avoid the complaint but promised to deal with it. Either he simply
neglected to do so, or having done so , there was a breakdown in communication
elsewhere.
[43] Counsel argued that if liability was imposed on the appellant that it would open the
floodgates to open ended claims, and that this court should place a ‘brake on liability.’30
I disagree with that argument. Every claim must obviously be scrutinised carefully and
dealt with on its own f acts. Mr Xwayi’s evidence that he reported the open manhole is
either true or not – there is no scope for a mistake. The appellant has accepted that Mr
Xwayi was a credible witness. That he made the report can therefore be accepted as the
truth.
[44] To summarise, the legal convictions of the community dictate that liability should
be conferred on the appellant. The fear of endless liability is misplaced. I t has not been
established that the full court was misdirected in upholding the finding of the trial court
that the omission to take steps to have prevented injury being occasioned to the
respondent by her stepping into the open manhole, was wrongful.
Negligence
[45] As regards negligence, following on the finding that Mr Xwayi had reported the
existence of the danger posed by the open manhole cover to an employee of the appellant
who was obliged to a ct on such report, the fact that the employee apparently did not do
so, or alternatively having reported it, an unknown employee failed to record it on the C3
system and failed to react thereto appropriately, constitutes negligence. The well know
30 Country Cloud Trading CC v MEC, Department of Infrastructure Development [2014] ZACC 28; 2015 (1)
SA 1 (CC) par 20. The facts in the present appeal are also distinguishable from what prevailed in BE obo
JE v Minister of the Executive Council for Social Development, Western Cape [2021] ZACC 23; 2021 (1)
BCLR 1087 (CC) para s 1, 2, 10 and 25 as t o whether there could be a legal duty to ensure the safety of
each and every childcare facility. In the present appeal, the legal duty is confined to one manhole that was
uncovered which had been reported to the appellant.
20
test for negligence in Kruger v Coetzee31 is satisfied. The appellant’s employees simply
failed to do what objectively was reasonably required. The appellant is directly
alternatively vicariously liable for their negligence.
Conclusion
[46] An appeal is not a fresh rehearing of the disputed issues. It is for the appellant to
show that the full court had committed a material misdirection affecting the outcome it
reached - only then could this court interfere. No basis has been advanced before the full
court or th is court to support the conclusion that the trial court had been guilty of a ny
misdirection which would affect the outcome of the trial.
[47] The full court also confirmed the trial court’s judgment that there was no basis for
finding contributory negligence on the part of the respondent. Before us the appellant did
not argue for a finding of contributory negligence. According to its notice of appeal it
simply sought an order replacing the order of the trial court with an order that the appellant
is not liable for the damages that the respondent suffered in consequence of the accident
which occurred on 17 October 2013, with no alternative of an order determining
contributory negligence on the part of the respondent , should it be unsuccessful . The
conclusion in the appellant’s heads of argument asked that the appeal against ‘the whole
of the judgment (except the finding as to contributory negligence) of the Full Court’ be
upheld. There was however no such finding of contributory negligence by the full court ,
or the trial court.
[48] The appeal against the judgment of the full court accordingly falls to be dismissed.
There is no reason why the costs of the appeal should not follow the result . Both parties
31 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E held that.
‘For the purpose of liability, culpa arises if –
(a) A diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.’
21
employed two counsel. It is appropriate that the costs should inc lude the costs of two
counsel where so employed.
Order
[49] The appeal is dismissed with costs, such costs to include the costs of two counsel
where so employed.
________________________
P A KOEN
ACTING JUDGE OF APPEAL
22
Appearances
For appellant: P Botha SC with A du Toit
Instructed by: MHI Attorneys, Bellville.
Webbers Attorneys, Bloemfontein.
For respondent: H McLachlan with L Gabriel
Instructed by: Kruger & Co Attorneys, Goodwood.
Phatshoane Henney Inc, Bloemfontein.